New India Assurance Co. Limited vs Buriben and Others

Akil Kureshi, J.—This petition has been filed by the insurance company challenging order dated 18.12.2004 passed by District Judge, Ahmedabad Rural by which learned Judge was pleased to condone delay in filing restoration application by Respondent No. 1 original claimant.

Shortly stated facts are as follows:

2.1 Respondent No. 1 claiming to have sustained serious bodily injuries and permanent disability in a vehicular accident which took place on 21.9.1988 while he was traveling in ST bus between Ahmedabad and Gandhinagar, filed claim petition No. 420/1989 claiming compensation of Rs. 4,00,000/-with interest from the opponents which included ST Corporation as well as Insurance company of the other vehicle involved in the accident.

2.2 At the stage when evidence was to be recorded, claim petition came to be dismissed for want of appearance of advocate for the claimant. This happened on 28.1.1991. Many years thereafter, in the year 2003, claimant filed application for restoration through another advocate and also prayed for condonation of delay in filing restoration application. Learned Claims Tribunal by impugned order dated 18.12.2004 condoned the delay on condition of cost of Rs. 500/-to be deposited by the claimant.

Counsel for the Petitioner insurance company submitted that tribunal ought not to have condoned such gross and inordinate delay caused in filing of the petition. Sufficient reasons have not been indicated in order for condonation of delay. Impugned order therefore,be set aside.

On the other hand, learned Counsel Shri Mithani appearing for Respondent No. 1 original claimant drew my attention to the application of delay condonation filed by the claimants before the Claims Tribunal in which it is stated inter-alia that the claimant was continuously in touch with the learned advocate. He went on assuring him that matter is being taken care of, that it will take some more time, that he will be informed about the progress. He submitted that claimant was not aware about the claim petition having been dismissed in absence of advocate.

Considering the documents on record and finding that the claimant had before the Claims Tribunal in delay condonation application made out grounds for condonation of delay, I am of the opinion that the order passed by the Claims Tribunal in exercise of its discretionary powers need not be reversed in its entirety. The claimant would not benefit out of dismissal of his claim petition for default. Particularly, he is dis-entitled from seeking interest during such period. Counsel for the claimant also stated that unconditional restoration though may not be warranted in the present case, upon such appropriate conditions, claim petition may be allowed to heard on merits.

In totality of facts and circumstances of the case though the order of condonation of delay is not disturbed, it is provided that from the date when the claim petition went by default till the date of this order, the claimant shall receive no interest even if eventually his claim petition succeeds in full or partially.

With above directions, this petition is disposed of. It is clarified that even claim petition shall stand restored and may be heard on merits expeditiously.